CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 février 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                            AS TO THE ADMISSIBILITY OF                         Application No. 15607/89                       by Selahattin OZBERK                       against the United Kingdom             The European Commission of Human Rights sitting in private on 15 February 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   E. BUSUTTIL                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 12 October 1989 by Selahattin OZBERK against the United Kingdom and registered on 12 October 1989 under file No. 15607/89;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Turkish citizen, born in 1959.   He is a printer by profession.   He resides, at present, in Rome.   He is represented in the proceedings before the Commission by Mr.   Michael Hanley, of Miller Wilson, Solicitors, London.           The applicant arrived at Heathrow airport in London on 31 May 1989 and applied for political asylum, pursuant to the Convention Relating to the Status of Refugees (1951).   He was immediately detained under the provisions of the Immigration Act 1971, first at Harmondsworth Detention Centre and then HM Prison Winchester, following his participation in a hunger strike.   He was served with a notice refusing his application for asylum on 27 June 1989.           The applicant is of Kurdish ethnic origins and Alevi by religion.   He is a sympathiser of Devrimci Halkan Birligi (DHB), an illegal and non-violent Kurdish political movement.   He claims that his brother was arrested and tortured by the Turkish police in 1980. His brother was subsequently sentenced to eight years' imprisonment for membership of the DHB.   On being released on bail by the Supreme Court in Ankara, he went into hiding.   As a result of his brother's disappearance, the applicant states that the authorities concentrated their attentions on the family home with the result that the applicant and another brother went into hiding to avoid interrogation.   The applicant was later arrested on 10 April 1989 in Adana and claims that he was taken to a police station and beaten with truncheons, slapped and kicked and interrogated about the whereabouts of his brother.           He has submitted a medical report which concludes that the applicant's psychological state is consistent with his allegations of maltreatment.           Following an application for judicial review of the refusal of asylum, the Home Office undertook to review and re-consider the applicant's case.   He was then interviewed by an immigration officer with the assistance of an interpreter and served with a "Minded to Refuse" Notice.   This Notice sets out the preliminary rejection of his asylum application.           On 14 August 1989 the Home Office finally refused the application for asylum.   An application for leave to move for judicial review of this decision was rejected by the High Court on 18 August 1989.           On 11 October 1989 the London representative of the United Nations High Commissioner for Refugees (UNHCR) informed the Home Office that in their view the applicant's fear of persecution was well founded and that he qualified as a refugee under the 1951 Convention. Amnesty International wrote to the Home Office on 11 October 1989 expressing the same opinion.           A third application for leave to move for judicial review of the refusal of asylum was rejected by the High Court on 12 October 1989.   Removal directions, originally set for 12 October 1989, were deferred less than an hour before the departure time on a request by the UNHCR for an opportunity to find a safe third country for the applicant.   The applicant then remained in detention at Pentonville Prison until 26 October 1989 when he was flown to Italy under the auspices of the UNHCR.   He was eventually allowed to enter Italy on 31 October 1989 and is currently maintained in Rome by the UNHCR.   COMPLAINTS           The applicant complains that his removal from the United Kingdom constitutes a breach of Articles 3 and 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 12 October 1989 and registered on the same day.   The Commission first examined the application on 12 October 1989 and rejected an application that the respondent Government be requested under Rule 36 of the Rules of Procedure not to deport the applicant from the United Kingdom.   THE LAW   1.       The applicant complains under Article 3 (Art. 3) of the Convention of his removal from the United Kingdom.           The Commission first recalls that according to its established case-law the right to asylum and freedom from expulsion are not as such included among the rights and freedoms mentioned in the Convention but that the expulsion of a person may nevertheless, in certain exceptional circumstances, raise an issue under the Convention and in particular under Article 3 (Art. 3) where substantial grounds have been shown for believing that the person concerned would be subjected, in the State to which he is to be sent, to treatment which is in violation of this Article (see No. 10564/83, Dec. 10.12.84, D.R. 40 pp. 262, 265 ; Eur. Court H.R., Soering judgment of 7 July 1989, Series A no. 161, para. 91).           In the present case, however, the Commission notes that the respondent Government deferred the applicant's removal to Turkey at the request of the UNHCR until a third country could be found which was willing to admit him.   He was then removed to Italy, where he is, at present, maintained by the UNHCR.   In these circumstances no issue can arise under Article 3 (Art. 3) of the Convention.           It follows that the applicant's complaint under this provision must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further complains under Article 13 (Art. 13) of the Convention that there exists under United Kingdom law no effective remedy in respect of his above complaint.           The Commission recalls that an issue can only arise under this provision in respect of an "arguable" claim that there has been a breach of one of the provisions of the Convention (see Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 39, para. 71).   The Commission notes that no issue under Article 3 (Art. 3) of the Convention arises in the present case since the applicant was eventually removed to Italy where he lives at present. The applicant's complaint under this provision does not therefore give rise to an "arguable" claim for purposes of Article 13 (Art. 13).   It follows that this complaint must also be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)